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District Court of Appeal, Second District, Division 1, California.


Civ. 13172.

Decided: August 13, 1941

Macfarlane, Schaefer, Haun & Mulford, of Los Angeles, for petitioners. J. H. O'Connor, Co. Counsel, Douglas De Coster, Deputy Co. Counsel, and Victor Mindlin, all of Los Angeles, for respondent.

In this proceeding, the petitioners claim that they are entitled to a writ of prohibition restraining respondent court from rendering judgment against petitioners, following the entry of their default in an action brought against them in said court. On April 18, 1935, an action was commenced in respondent Superior Court against petitioners by one Charles R. Bertrand, and upon the same date summons was issued. On April 21, 1941, petitioners herein as defendants in the action served and filed a notice of motion to dismiss the action for want of prosecution, by reason of the fact that five years had elapsed since the filing thereof. § 583, Code Civ.Proc. In the aforesaid notice of motion it was stated specifically that the moving parties “will make a special appearance for the purpose of moving this Court for an order dismissing the above entitled action”. Without narrating in detail each and all of the acts done by plaintiff in the action to effect service of complaint and summons upon petitioners, as defendants therein, suffice it to say that at the hearing of the aforesaid motion in respondent court, there were introduced various affidavits from which it appeared that plaintiff had made constant, diligent and unceasing, but unavailing, efforts to serve petitioners with process throughout the years intervening between the filing of the action and the hearing on the motion to dismiss same. Based upon such affidavits, the filing of which is alleged in respondent court's answer to the petition herein, and which filing is undenied, the court denied the motion of petitioners on the ground that they had either secreted themselves within the state of California to prevent service of summons, or had resided outside the state of California, by reason of which respondent court determined that at no time did it have the power to proceed to trial in said action.

Petitioners' contentions herein are twofold: A. That the motion to dismiss under section 583 of the Code of Civil Procedure is not a general appearance, and that, therefore, the court had no right to order the default of the defendants entered. B. That after five years had elapsed from the time an action is filed, and said cause has not been brought to trial the trial court loses jurisdiction over said action for all purposes, except to dismiss the same.

Whether an appearance is general or special is determined by the character of the relief sought and not by the intention of the party that it shall or shall not operate as a general or special appearance. The statement of a defendant or party that he is making a special appearance is not necessarily conclusive. The test is––Did the party appear and object only to the consideration of the case or any procedure in it because the court had not acquired jurisdiction of the person of the defendant or party? If so, then the appearance is special. If, however, he appears and asks for any relief which could be given only to a party in a pending case, or which itself would be a regular proceeding in the case, it is a general appearance regardless of how adroitly, carefully or directly the appearance may be denominated or characterized as special. In re Clarke, 125 Cal. 388, 58 P. 22. The rule in this regard may be epitomized by saying that if a defendant by his appearance insists only upon the objection that he is not in court for want of jurisdiction over his person and confines his appearance for that purpose only, then he has made a special appearance, but if he raises any other question, or asks any relief which can only be granted upon the hypothesis that the court has jurisdiction of his person, then he has made a general appearance. Olcese v. Justice's Court, 156 Cal. 82, 103 P. 317; Zobel v. Zobel, 151 Cal. 98, 90 P. 191.

In the instant case we are impressed that petitioners in seeking a dismissal of the case, pursuant to the provisions of section 583 of the Code of Civil Procedure, were invoking the affirmative action of the court in their behalf to terminate the litigation. How they could apply for the relief asked on any other theory than that they were submitting themselves to the general jurisdiction of the court in the action is not apparent to us, because the relief they sought was such as could be given only to a party in a pending case. Zobel v. Zobel, supra.

Petitioners' claim that when an action is not brought to trial within five years after the filing thereof, the court loses jurisdiction thereof for all purposes, save only to dismiss it, and that the duty of the court to dismiss such action is obligatory and mandatory, cannot be sustained.

While, generally speaking, it is mandatory upon the court pursuant to section 583 of the Code of Civil Procedure to dismiss an action when the requirements of the section are not met, nevertheless, there is a well–recognized implied exception to this rule. Such exception applies when, as a result of the conduct or action of the defendant, it is not possible to bring the case to trial. When such a situation exists, the court is not bound to dismiss the action. The plain purpose of the statute is to prevent avoidable delays for too long a period, and that it is not designed to arbitrarily close a proceeding at all events in five years is evidenced by the fact that by its provisions the parties are permitted to extend the period without limitation by written stipulation. Examples of instances in which the time element provided for in section 583 of the Code of Civil Procedure may be disregarded, if during such time the jurisdiction or right of the court to set the cause for trial was suspended, are furnished by the cases of Christin v. Superior Court, 9 Cal.2d 526, 71 P.2d 205, 112 A.L.R. 1153; Estate of Morrison, 125 Cal.App. 504, 14 P.2d 102; and Kinard v. Jordan, 175 Cal. 13, 164 P. 894. The theory of these decisions seems to be that where, for all practicable purposes, going to trial would be impossible, the provisions of section 583 of the Code of Civil Procedure are tolled, thereby, as said in Estate of Morrison, supra, 125 Cal.App. at page 512, 14 P.2d at page 106, “setting reality above artificiality”.

To our minds no logical distinction can be made between a temporary suspension of proceedings in the trial court because of a dismissal induced by fraud or mistake (Estate of Morrison, supra); or a suspension of the power of the court to proceed by reason of the pendency of an appeal (Kinard v. Jordan, supra); and a suspension of the power of the court to proceed to trial in the cause by reason of the inability of the plaintiff to serve the complaint and summons upon the defendants, as the court found in the case before us upon competent and sufficient affidavits, because of the artifice, evasive and surreptitious conduct of such defendants in avoiding service of such process. To hold otherwise would be to put a premium upon conduct which, to say the least, impedes, if not obstructs, justice and the orderly conduct of judicial tribunals. This the courts cannot do.

In the light of the decisions, it seems clear to us that the only hypothesis upon which petitioners could base their motion to dismiss under section 583 of the Code of Civil Procedure was that respondent court had the power to proceed to trial of said cause, and this hypothesis necessarily presupposes and includes that respondent court was clothed with jurisdiction of the persons of petitioners. Such appearance on the part of petitioners was therefore a general appearance by them, and the fact that the court denied petitioners' motion is of no consequence in determining the nature of their appearance, any more than was the designation of the same by petitioners as a special appearance. Having made a general appearance and thereafter failing to plead in the action, and the court having correctly ruled upon such motion under the facts here present, no error was committed by respondent court in directing the entry of the default of said petitioners, and respondent court should not be restrained from entering a judgment against them.

It is ordered that the alternative writ issued herein be discharged sixty days from and after the date of filing of this decision. The peremptory writ prayed for is denied.

WHITE, Justice.

We concur: YORK, P. J.; DORAN, J.